SHARE EXCHANGE AGREEMENT Dated as of May 17, 2010 among MAN GROUP PLC and THE STOCKHOLDERS LISTED ON SCHEDULE I HERETO
Exhibit 2.2
EXECUTION COPY
Dated as of May 17, 2010
among
MAN GROUP PLC
and
THE STOCKHOLDERS LISTED ON SCHEDULE I HERETO
TABLE OF CONTENTS
Page | ||||||
ARTICLE 1 DEFINED TERMS | 2 | |||||
SECTION 1.1.
|
Defined Terms | 2 | ||||
ARTICLE 2 SHARE EXCHANGE | 5 | |||||
SECTION 2.1.
|
Share Exchange | 5 | ||||
SECTION 2.2.
|
Share Exchange Closing | 5 | ||||
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS | 5 | |||||
SECTION 3.1.
|
Authority | 6 | ||||
SECTION 3.2.
|
Non-Contravention | 6 | ||||
SECTION 3.3.
|
Governmental Approvals | 7 | ||||
SECTION 3.4.
|
Ownership of Shares | 7 | ||||
SECTION 3.5.
|
Brokers | 8 | ||||
SECTION 3.6.
|
Purchase for Own Account | 8 | ||||
SECTION 3.7.
|
Ability to Protect Its Own Interests and Bear Economic Risk | 8 | ||||
SECTION 3.8.
|
Receipt of Information | 8 | ||||
SECTION 3.9.
|
Private Placement | 8 | ||||
SECTION 3.10.
|
Parent Shares | 9 | ||||
SECTION 3.11.
|
Information Supplied | 9 | ||||
ARTICLE 4 [RESERVED] | 9 | |||||
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT | 9 | |||||
SECTION 5.1.
|
Organization | 9 | ||||
SECTION 5.2.
|
Capitalization | 10 | ||||
SECTION 5.3.
|
Authority | 10 | ||||
SECTION 5.4.
|
Non-Contravention | 11 | ||||
SECTION 5.5.
|
Governmental Approvals | 11 | ||||
SECTION 5.6.
|
Brokers | 12 | ||||
SECTION 5.7.
|
Regulatory Reports; Undisclosed Liabilities | 12 | ||||
SECTION 5.8.
|
Absence of Certain Changes | 13 | ||||
SECTION 5.9.
|
Legal Proceedings | 13 |
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||||
SECTION 5.10.
|
Valid Issuance | 13 | ||||
SECTION 5.11.
|
Purchase for Own Account | 14 | ||||
SECTION 5.12.
|
Ability to Protect its Own Interests and Bear Economic Risk | 14 | ||||
SECTION 5.13.
|
Receipt of Information | 14 | ||||
SECTION 5.14.
|
Private Placement | 14 | ||||
SECTION 5.15.
|
Legend | 14 | ||||
SECTION 5.16.
|
Exclusivity of Representations and Warranties | 15 | ||||
SECTION 5.17.
|
No Other Parent Representations or Warranties | 15 | ||||
ARTICLE 6 ADDITIONAL AGREEMENTS | 15 | |||||
SECTION 6.1.
|
Exchange of Exchangeable Shares | 15 | ||||
SECTION 6.2.
|
Share Exchange Commitment | 15 | ||||
SECTION 6.3.
|
Transfer and Other Restrictions | 16 | ||||
SECTION 6.4.
|
No Solicitation | 16 | ||||
SECTION 6.5.
|
Further Assurances | 17 | ||||
SECTION 6.6.
|
Exchange Shares | 17 | ||||
SECTION 6.7.
|
Public Statements | 18 | ||||
SECTION 6.8.
|
Fiduciary Duties | 18 | ||||
SECTION 6.9.
|
Amendment of Agreements | 19 | ||||
SECTION 6.10.
|
Resignation from the Company’s Board of Directors | 19 | ||||
SECTION 6.11.
|
No Dealing | 19 | ||||
SECTION 6.12.
|
Parent Shareholders Meeting; Preparation of the Shareholder Circular and Prospectus | 20 | ||||
SECTION 6.13.
|
Employment Agreements | 20 | ||||
SECTION 6.14.
|
Continued Reinvestment | 20 | ||||
ARTICLE 7 CONDITIONS
|
21 | |||||
SECTION 7.1.
|
Conditions to Each Party’s Obligation to Effect the Share Exchange | 21 | ||||
SECTION 7.2.
|
Conditions to Obligations of Parent | 22 |
TABLE
OF CONTENTS
(continued)
(continued)
Page | ||||||
SECTION 7.3.
|
Conditions to Obligation of the Stockholders | 23 | ||||
ARTICLE 8 Survival; Trustee Liability | 24 | |||||
SECTION 8.1.
|
Survival | 24 | ||||
SECTION 8.2.
|
Trustee Liability | 24 | ||||
ARTICLE 9 TERMINATION, AMENDMENT AND WAIVER | 25 | |||||
SECTION 9.1.
|
Termination | 25 | ||||
SECTION 9.2.
|
Amendment | 26 | ||||
SECTION 9.3.
|
Waiver | 26 | ||||
ARTICLE 10 GENERAL PROVISIONS | 26 | |||||
SECTION 10.1.
|
Assignment | 26 | ||||
SECTION 10.2.
|
Entire Agreement | 26 | ||||
SECTION 10.3.
|
No Third-Party Beneficiaries | 26 | ||||
SECTION 10.4.
|
Governing Law | 26 | ||||
SECTION 10.5.
|
Jurisdiction | 27 | ||||
SECTION 10.6.
|
Specific Performance | 27 | ||||
SECTION 10.7.
|
WAIVER OF JURY TRIAL | 27 | ||||
SECTION 10.8.
|
Severability | 28 | ||||
SECTION 10.9.
|
Notices | 28 | ||||
SECTION 10.10.
|
Fees and Expenses | 29 | ||||
SECTION 10.11.
|
Interpretation | 29 | ||||
SECTION 10.12.
|
Counterparts | 30 |
This SHARE EXCHANGE AGREEMENT, dated as of May 17, 2010 (this “Agreement”), is among
MAN GROUP PLC, a public limited company existing under the laws of England and Wales
(“Parent”), and each of the stockholders listed on Schedule I (each, a
“Stockholder” and, collectively with any permitted transferee under Section 6.3(b),
including any Permitted Trust Transferee, the “Stockholders”).
Introduction
WHEREAS, Parent, Escalator Sub 1 Inc., a Delaware corporation and wholly owned subsidiary of
Parent (“Merger Sub”), and GLG Partners, Inc., a Delaware corporation (the
“Company”), propose to enter into an Agreement and Plan of Merger, dated as of the date
hereof (as it may be amended or supplemented from time to time, the “Merger Agreement”),
pursuant to which, upon the terms and subject to the conditions thereof, Merger Sub will be merged
with and into the Company, and the Company will be the surviving entity (the “Merger”); and
WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner of, or is
trustee of a trust that is the record holder of and whose beneficiaries are the beneficial owners
of, (i) the number of unrestricted shares (the “Common Shares”) of common stock, par value
$0.0001 per share, of the Company (the “Company Common Stock”), (ii) the number of shares
(the “Preferred Shares”) of Series A Voting Preferred Stock, par value $0.0001 per share,
of the Company and (iii) the number of shares (the
“Exchangeable Shares” and together with the Common Shares and Preferred Shares, the
“Shares”) of Ordinary Class B Shares, par value $0.0001 per share, of FA Sub 2 Limited (the
“Exchangeable Stock”), in each case, set forth opposite such Stockholder’s name on Schedule
I (such Shares, together with any other shares of capital stock of the Company or Exchangeable
Stock acquired by such Stockholder after the date hereof and during the term of this Agreement
(including through the exercise of any warrants or any other convertible or exchangeable securities
or similar instruments), being collectively referred to herein as such Stockholder’s “Subject
Shares”); provided, that, notwithstanding the foregoing, Subject Shares shall not include (i)
any shares (the “Conversion Shares”) of Company Common Stock such Stockholder acquired upon
conversion of the Company’s 5.00% Convertible Dollar-Denominated Subordinated Notes due May 15,
2014 (the “Convertible Notes”) and (ii) the number of shares (the “Open Market
Shares”) of Company Common Stock acquired by such Stockholder in the open market prior to the
date hereof set forth opposite such Stockholder’s name on Schedule I;
WHEREAS, as a condition to its willingness to enter into the Merger Agreement, Parent has
required that (i) each Stockholder agree, and each Stockholder is willing to agree, to exchange
immediately prior to the Effective Time of the Merger such Stockholder’s Subject Shares for
ordinary shares of US$0.034286 cents each of Parent (the “Parent Ordinary Shares”) pursuant
to the terms and subject to the conditions of this Agreement (the “Share Exchange”), and
(ii) each Stockholder that is party to the Voting
and Support Agreement, dated as of the date hereof (the “Voting Agreement”), among
Parent and certain of the Stockholders, agree, and each such Stockholder is willing to agree, to
vote such Stockholder’s Subject Shares in favor of the Merger Agreement, the Merger and the other
transactions contemplated by the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger Agreement and this
Agreement, Parent has required that (i) Xxxx Xxxxxxxxx enter into a non-competition and
non-solicitation agreement with Parent and the Company, (ii) Xxxxxxxx Xxxxx enter into a deed of
vendor covenant with Parent and the Company and (iii) Xxxxxx Xxxxxxxx enter into a deed of vendor
covenant with Parent and the Company, each dated the date hereof and effective on and from the
Share Exchange Closing Date (as defined below).
In consideration of the foregoing and of the representations, warranties, covenants and
agreements set forth in this Agreement, the parties hereto agree as follows:
ARTICLE 1
DEFINED TERMS
DEFINED TERMS
SECTION 1.1. Defined Terms.
(a) For purposes of this Agreement, the following terms shall have the meanings specified in
this Section 1.1(a):
“Admission and Disclosure Standards” means the requirements contained in the Admission
and Disclosure Standards published by the London Stock Exchange containing, among other things, the
admission requirements to be met by companies seeking admission to trading on the London Stock
Exchange’s main market for listed securities, as amended or updated from time to time.
“Average Dollar Closing Price” means the average of the daily volume weighted average
price of a Parent Ordinary Share in pounds sterling on the London Stock Exchange for the ten
consecutive trading days prior to, but not including, the Share Exchange Closing Date, converted
daily into U.S. dollars using the closing U.S. dollar/sterling rate quoted by WM/Reuters on each
such trading day.
“Dealing” has the meaning set forth in the definitions section of the UK Takeover Code
issued by The Panel on Takeovers and Mergers.
“Disclosure and Transparency Rules” means the UK Disclosure and Transparency Rules of
the UK Listing Authority made under Part VI of FSMA.
“Exchange Ratio” means the Signing Date Exchange Ratio; provided, that if, on close of
trading on the last trading day immediately prior to the Share Exchange Closing Date, the product
of the Average Dollar Closing Price times the Signing Date Exchange Ratio is greater than the
Maximum Price, then the “Exchange Ratio” shall
2
equal the quotient obtained by dividing the Maximum Price by the Average Dollar Closing Price.
“FSA” means the Financial Services Authority of the United Kingdom or its successor
organization or organizations.
“FSMA” mean the United Kingdom Financial Services and Markets Xxx 0000, including any
regulations made pursuant thereto.
“London Stock Exchange” means London Stock Exchange plc.
“Listing Rules” means the Listing Rules of the UK Listing Authority made under Part VI
of FSMA.
“Lock-up Agreement” has the meaning set forth in Section 2.1.
“Maximum Price” means $4.25.
“Official List” means the Official List maintained by the UK Listing Authority
pursuant to Part VI of FSMA.
“Parent Material Adverse Effect” means any change, development, occurrence, event or
state of facts that is, or would reasonably be expected to be, materially adverse to the financial
condition, assets, liabilities, business or results of operations of Parent and its Subsidiaries
taken as a whole; provided, however, that none of the following shall constitute a Parent Material
Adverse Effect:
(i) changes in the United States or European economy, financial markets, political or
regulatory conditions generally,
(ii) changes, developments, occurrences or events generally affecting the alternative
investment management industry (Parent’s “Industry”),
(iii) the negotiation, execution, announcement and consummation of the Transactions and the
Share Exchange Transactions or any changes, developments, occurrences, events or states of fact
arising therefrom, and
(iv) (A) changes in Law or in generally accepted accounting principles or accounting
standards, or changes in general legal, regulatory or political conditions, (B) acts of war,
sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or
terrorism threatened or underway as of the date of this Agreement, (C) any action taken by Parent
or its Subsidiaries as required by this Agreement or with the written consent of the other parties
hereto, or (D) any decline in the market price, or change in trading volume, of the capital stock
of Parent, or any failure to meet internal or publicly announced revenue or earnings projections;
provided, further, however, that changes, developments, occurrences, events or effects referred to
in:
3
(x) clauses (i), (ii), (iv)(A) and (iv)(B) of this definition may constitute (and may be taken
into account in determining the occurrence or expected occurrence of) a Parent Material Adverse
Effect to the extent they adversely affect Parent and its Subsidiaries, taken as a whole, in a
disproportionate manner relative to other participants in Parent’s Industry,
(y) clause (iii) shall not apply with respect to Sections 3.2, 3.3, 5.4 and 5.5; and
(z) clause (iv)(D) of this definition shall not prevent a determination that the underlying
cause of any decline, change or failure referred to therein is a Parent Material Adverse Effect.
“Parent Shares” means the Parent Ordinary Shares and the deferred sterling shares, par
value £1 per share of Parent and any other shares issued by Parent from time to time.
“Principal Stockholders” mean Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxxxxxxx and
their respective Related Trusts.
“Prospectus Rules” means the rule and regulations made by the FSA in its capacity as
the UKLA under Part VI of FSMA and contained in the UKLA publication of the same name.
“Related Trust” means, in the case of Xxxx Xxxxxxxxx, the Xxxxxxxxx GLG Trust, in the
case of Xxxxxxxx Xxxxx, the Roman GLG Trust, and in the case of Xxxxxx Xxxxxxxx, the Lagrange GLG
Trust.
“Reinvestment Holder” means a Stockholder listed on Schedule II attached hereto.
“Restricted Reinvested Assets” means with respect to a Reinvestment Holder, those
funds that are designated by such Reinvestment Holders as “restricted” pursuant to Section 6.14
(including any earnings and profits thereon from and after the Effective Time).
“Service Partnerships” means Lavender Heights Capital LP and Sage Summit LP.
“Signing Date Exchange Ratio” means 1.0856.
“Trustee Party” has the meaning set forth in Section 8.2.
4
“UK Listing Authority” means the FSA acting in its capacity as the competent authority
in the United Kingdom under Part VI of FSMA.
“Unrestricted Reinvested Assets” means with respect to a Reinvestment Holder, any
funds of such Reinvestment Holder (together with the assets of such Reinvestment Holder’s Related
Trust) that are invested in any of the Funds and that are not Restricted Reinvestment Assets.
(b) Capitalized terms used but not defined herein have the meanings set forth in the Merger
Agreement.
ARTICLE 2
SHARE EXCHANGE
SHARE EXCHANGE
SECTION 2.1. Share Exchange. Upon the terms and subject to the conditions of this
Agreement, each Stockholder shall exchange, assign, transfer and deliver all of such Stockholder’s
Subject Shares to Parent at the Share Exchange Closing (as hereinafter defined); and, in exchange
therefor, Parent shall allot and issue to each Stockholder such number of shares (rounded to the
nearest whole share) of Parent Ordinary Shares (the “Exchange Shares”) as is equal to the
product of (i) the number of such Stockholder’s Subject Shares that are Company Common Stock
multiplied by (ii) the Exchange Ratio. All of the Exchange Shares (other than those
allotted and issued to the Service Partnerships) shall be subject to a Share Lock-Up Deed of Trust
in substantially the form attached hereto as Exhibit A (a “Lock-Up Agreement”) with respect
to each Stockholder. The
Exchange Shares allotted and issued to the Service Partnerships shall continue to be subject to the
same vesting and other terms and conditions that were applicable to the Service Partnerships’
Subject Shares immediately prior to the Share Exchange Closing, except to the extent acceleration
is necessary to permit payment of applicable Taxes.
SECTION 2.2. Share Exchange Closing.
(a) The closing of the Share Exchange (the “Share Exchange Closing”) shall take place
after satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in
Article 7 (other than those conditions that by their nature are to be satisfied at the closing, but
subject to the satisfaction or waiver of those conditions at such time) and immediately prior to
the Closing at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, unless another time, date or place is agreed to in writing by the parties hereto (such date
upon which the Share Exchange Closing occurs, the “Share Exchange Closing Date”).
(b) At the Share Exchange Closing, each Stockholder shall cause the book entry transfer of
such Stockholder’s Subject Shares to an account designated by
5
Parent and (ii) Parent shall allot and issue to the Stockholders their respective number of
Exchange Shares, which shall be subject to the Lock-Up Agreements.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Except as disclosed in the definitive disclosure schedule letter delivered by the Stockholders
to Parent prior to the execution of this Agreement (the “Stockholder Disclosure Schedule”),
each Stockholder, severally and not jointly, represents and warrants to Parent as follows:
SECTION 3.1. Authority.
(a) If such Stockholder is incorporated as a corporation, then such Stockholder has the
requisite corporate power and authority and full legal capacity to enter into, execute and deliver
this Agreement, to perform fully its obligations hereunder and to consummate the transactions
contemplated hereby. If such Stockholder is organized as a partnership, then such Stockholder has
the requisite partnership power and authority and full legal capacity to enter into, execute and
deliver this Agreement, to perform fully its obligations hereunder and to consummate the
transactions contemplated hereby. If such Stockholder is organized as a limited liability company,
then such Stockholder has the requisite limited liability company power and authority and full
legal capacity to enter into, execute and deliver this Agreement, to perform fully its obligations
hereunder and to consummate the transactions contemplated hereby. If such Stockholder is organized
as a trust, then such Stockholder has the requisite power and authority and full legal capacity to
enter into, execute and deliver this Agreement, to perform fully its obligations hereunder and to
consummate the transactions contemplated hereby. If such Stockholder is an individual, then such
Stockholder has the power and authority and full legal capacity to, and is competent to, enter
into, execute and deliver this Agreement, to perform fully his or her obligations hereunder and to
consummate the transactions contemplated hereby.
(b) The execution and delivery of this Agreement by such Stockholder, the performance by such
Stockholder of its obligations hereunder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly and validly authorized and approved by such
Stockholder. No other proceedings on the part of such Stockholder are necessary to authorize the
execution and delivery of this Agreement and the performance by such Stockholder of its obligations
hereunder. This Agreement has been duly executed and delivered by such Stockholder and, assuming
due authorization, execution and delivery hereof by Parent, constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms,
except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general application affecting or relating to
the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity,
whether considered in a proceeding at law or in equity (the “Bankruptcy and Equity
Exception”).
6
SECTION 3.2. Non-Contravention. Neither the execution and delivery of this Agreement
and each other agreement contemplated to be executed and delivered herein by such Stockholder nor
the consummation by such Stockholder of the Share Exchange, nor compliance by such Stockholder with
any of the terms or provisions hereof or thereof, will (a) violate or conflict with any provision
of the Organizational Documents of such Stockholder (if such Stockholder is not a natural person)
or (b) assuming that the authorizations, consents and approvals referred to in Sections 3.3 are
obtained and the filings referred to in Section 3.3 are made, (i) violate in any material respect
any Law, injunction, order, judgment, ruling or decree of any Governmental Authority applicable to
such Stockholder or (ii) violate, conflict with, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default), or give rise to a right of
termination, cancellation or redemption, an acceleration of performance required, a loss of
benefits, or the creation of any Lien upon such Stockholder’s Subject Shares, under, any of the
terms, conditions or provisions of any Contract or Permit to which such Stockholder is a party,
except, in the case of clause (ii), as set forth on Section 3.2(b)(ii) of the Stockholder
Disclosure Schedule and for such violations, conflicts, defaults, terminations, cancellations,
redemptions, accelerations, losses and Liens as, individually and in the aggregate, would not
reasonably be expected to materially delay or impair such Stockholder’s ability to perform its
obligations hereunder or thereunder or the consummation of the Share Exchange (a “Stockholder
Material Adverse Effect”). If such Stockholder is a married individual and such Stockholder’s
Subject Shares constitute community property or otherwise need spousal approval in order for this
Agreement to be a legal, valid and binding obligation of such Stockholder, this Agreement has been
duly authorized, executed and delivered by, and constitutes a legal, valid and binding obligation
of, such Stockholder’s spouse, enforceable against such spouse in accordance with its terms, except
that such enforceability may be limited by the Bankruptcy and Equity Exception.
SECTION 3.3. Governmental Approvals. Except for filings with Governmental
Authorities required under, and compliance with other applicable requirements of, the Laws listed
on Section 3.3 of the Stockholder Disclosure Schedule, no consents or approvals of, or filings,
declarations or registrations with, any Governmental Authority are necessary for the execution and
delivery of this Agreement by such Stockholder and the consummation by such Stockholder of the
Share Exchange, except for such other consents, approvals, filings, declarations or registrations
that, if not obtained, made or given, would not reasonably be expected to have a Stockholder
Material Adverse Effect.
SECTION 3.4. Ownership of Shares. Such Stockholder is the record and beneficial
owner of, or is trustee of a trust that is the record holder of and whose beneficiaries are the
beneficial owners of, the Shares set forth opposite such Stockholder’s name on Schedule I attached
hereto free and clear of any security interests, liens, charges, encumbrances, equities, claims,
options or limitations of whatever nature and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of such Shares), except
for any such encumbrances arising
7
under the Stockholder Agreement (which, in the case of each such encumbrance, shall be
released and cease to be of effect upon the Share Exchange Closing), any such encumbrances arising
under applicable securities law or any such encumbrances arising hereunder. Such Shares represent
all of the shares of capital stock of the Company beneficially owned by such Stockholder, or in the
case such Stockholder is a trustee of a trust, all the shares of capital stock of the Company for
which such Stockholder is the record holder. There are no outstanding options, shares of Company
Common Stock subject to vesting or other rights to acquire from such Stockholder, or obligations of
such Stockholder to sell or to dispose of, any shares of capital stock of the Company.
SECTION 3.5. Brokers. Except for those fees and expenses to be paid by the Company
and which are disclosed in the Merger Agreement, no broker, investment banker, financial advisor or
other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission, or the reimbursement of expenses, in connection with the Share Exchange based upon
arrangements made by or, with the knowledge of such Stockholder, on behalf of such Stockholder in
connection with its entering into this Agreement.
SECTION 3.6. Purchase for Own Account. Such Stockholder is acquiring the Exchange
Shares for its own account and not with a view to, or for offer or sale in connection with, any
distribution or sale thereof in violation of the Securities Act of 1933, as amended, and the rules
and regulations of the Securities and Exchange Commission (the “SEC”) promulgated
thereunder (the “Securities Act”), and such Stockholder has no present or contemplated
agreement, understanding, arrangement, obligation or commitment providing for the disposition of
the Exchange Shares, other than in compliance with the Securities Act.
SECTION 3.7. Ability to Protect Its Own Interests and Bear Economic Risk. Such
Stockholder, by reason of its business and financial experience, has the capacity to protect such
Stockholder’s own interests in connection with the transactions contemplated by this Agreement.
Such Stockholder is able to bear the economic risk of an investment in the Exchange Shares and is
able to sustain a loss of all of such Stockholder’s investment in the Exchange Shares without
economic hardship if such a loss should occur.
SECTION 3.8. Receipt of Information. Such Stockholder has received all the
information he, she or it considers necessary or appropriate for deciding whether to acquire the
Exchange Shares. Such Stockholder further represents that he, she or it has had an opportunity to
ask questions and receive answers from Parent regarding the terms and conditions of the Exchange
Shares and the business and financial condition of Parent and to obtain additional information
necessary to verify the accuracy of any information furnished to such Stockholder or to which such
Stockholder had access. The foregoing, however, does not limit or modify the representations and
warranties of Parent in this Agreement or the right of such Stockholder to rely upon such
representations and warranties. Such Stockholder has not received, nor is such Stockholder relying
on, any representations from Parent other than as provided in this Agreement.
8
SECTION 3.9. Private Placement. Such Stockholder understands that (a) the Exchange
Shares have not been registered under the Securities Act or any other applicable U.S. federal or
state securities Laws by reason of their issuance by Parent in a transaction exempt from the
registration requirements thereof (and that Parent’s reliance on such exemption is predicated on
such Stockholder’s representations and warranties set forth in this Article 3) and (b) the Exchange
Shares may not be sold unless such disposition is registered under the Securities Act and
applicable state securities Laws or is exempt from registration thereunder. Such Stockholder
represents that he, she or it is an “accredited investor” (as defined in Rule 501(a) of Regulation
D under the Securities Act).
SECTION 3.10. Parent Shares. Other than pursuant to this Agreement, such Stockholder
does not own any of the Parent Shares, has any interest therein or has any rights under a
derivative referenced to the Parent Shares or has entered into any contract, option or other
arrangement or understanding to subscribe for or acquire any of the Parent Shares, any interest
therein or any rights under a derivative referenced to the Parent Shares.
SECTION 3.11. Information Supplied. None of the information supplied or to be
supplied by or on behalf of such Stockholder for inclusion or incorporation by reference in the
Shareholder Circular or the Prospectus and contained in the Shareholder Circular or the Prospectus
will, (a) in the case of the Shareholder Circular, at the date it (and any amendment or supplement
thereto) is first mailed to shareholders of Parent or at the time of the Parent Shareholders
Meeting and (b) in the case of the Prospectus, at the date it (and any amendment or supplement
thereto) is published, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they are made, not misleading; provided, that no
representation or warranty is made by such Stockholder with respect to information supplied by or
on behalf of either Parent or the Company for inclusion or incorporation by reference in any of the
foregoing.
ARTICLE 4
[RESERVED]
[RESERVED]
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
REPRESENTATIONS AND WARRANTIES OF PARENT
Except as disclosed in (I) the Regulatory Reports (as defined below) filed from and after May
28, 2009 and prior to the date of this Agreement or (II) the definitive disclosure schedule letter
delivered by Parent to the Company prior to the execution of this Agreement (the “Parent Share
Exchange Disclosure Schedule”), Parent hereby represents and warrants to the Stockholders as
follows:
9
SECTION 5.1. Organization.
(a) Parent is a public limited company duly organized and validly existing under the Laws of
England and Wales and has all power and authority necessary to own or lease all of its properties
and assets and to carry on its business as presently conducted.
(b) Parent is duly authorized or qualified to do business and is in good standing (with
respect to jurisdictions that have the concept of good standing) in each jurisdiction where the
ownership, leasing or operation of its properties or other assets or the nature its business
requires such authorization or qualification, except for failures to be so licensed, qualified or
in good standing that, individually and in the aggregate, would not reasonably be expected to have
a Parent Material Adverse Effect.
(c) Parent has made available to the Stockholders correct and complete copies of the
Organizational Documents of Parent, in effect as of the date of this Agreement, and which has
annexed or incorporated copies of all resolutions or agreements required by applicable Law to be so
annexed or incorporated.
SECTION 5.2. Capitalization.
(a) At the close of business on May 14, 2010, the authorized capital stock of Parent consists
of 2,858,329,201 Parent Ordinary Shares of US$0.034286 each, 1,043,449,209 deferred shares of 0.001
US cent each, 600,000 preference shares of US$1,000 each
and 50,000 deferred shares of £1 each (the “Deferred Sterling
Shares”). At the close of business on April 30, 2010, 1,712,341,544 Parent Ordinary Shares and
50,000 Deferred Sterling Shares were allotted and fully paid. As of March 31, 2010, up to
36,017,161 Parent Ordinary Shares were reserved for issuance in connection with share awards under
Parent incentive schemes and Parent employee share options (collectively, “Parent
Options”).
(b) Except as set forth in Section 5.2(a), as of April 30, 2010, there were (i) no outstanding
shares of capital stock of Parent, (ii) no outstanding securities of Parent or its Subsidiaries
convertible into or exchangeable or exercisable for shares of capital stock of Parent, and (iii) no
outstanding options, warrants or rights, or commitments or agreements, to acquire from Parent, or
that obligate Parent to issue, shares of capital stock of Parent or any securities of Parent or its
Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock of Parent.
As of the date of this Agreement, there are no outstanding agreements of any kind which obligate
Parent any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of Parent or any securities, options, warrants or rights convertible into or exchangeable or
exercisable for shares of capital stock of Parent. Since April 30, 2010 to the date of this
Agreement, Parent has not issued any shares of its capital stock or any securities convertible into
or exchangeable or exercisable for any shares of its capital stock, other than or pursuant to
Parent Options, referred to in Section 5.2(a) that are outstanding as of the date of this
Agreement. All outstanding shares of Parent Ordinary
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Shares have been duly authorized and duly and validly issued and are fully paid, not subject
to calls for further payments or otherwise assessable and free of preemptive rights, other than
statutory rights under the laws of England and Wales.
SECTION 5.3. Authority.
(a) Parent has all necessary power and authority to execute and deliver this Agreement and,
subject to obtaining the Parent Shareholder Approval, to perform its obligations hereunder and to
consummate the Share Exchange. The execution, delivery and performance by Parent of this
Agreement, and the consummation by it of the Share Exchange, have been duly authorized and approved
by its Board of Directors, and except for obtaining the Parent Shareholder Approval and obtaining
the approval of the Board of Directors of Parent to publishing, and the publication of, the
Shareholder Circular and the Prospectus, no other action on the part of Parent is necessary to
authorize the execution, delivery and performance by Parent of this Agreement and the consummation
of the Share Exchange. This Agreement has been duly executed and delivered by Parent and, assuming
due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal,
valid and binding obligation of Parent, enforceable against Parent in accordance with its terms,
subject to the Bankruptcy and Equity Exception.
(b) The Parent Shareholder Approval is the only vote or approval of the holders of any class
or series of shares of Parent which is necessary to approve the Share Exchange.
SECTION 5.4. Non-Contravention. Neither the execution and delivery of this Agreement
by Parent nor the consummation by Parent of the Share Exchange, nor compliance by Parent with any
of the terms or provisions hereof, will (a) violate or conflict with any provision of the
Organizational Documents of Parent or (b) assuming that the authorizations, consents and approvals
referred to in Section 5.5 are obtained and the filings referred to in Section 5.5 are made, (i)
violate in any material respect any Law, injunction, order, judgment, ruling or decree of any
Governmental Authority applicable to Parent or (ii) violate, conflict with, constitute a default
(or an event which, with notice or lapse of time, or both, would constitute a default), or give
rise to a right of termination, cancellation or redemption, an acceleration of performance
required, a loss of benefits, or the creation of any Lien upon any of the properties or assets of
Parent, under, any of the terms, conditions or provisions of any Contract or Permit to which Parent
is a party, except, in the case of clause (ii), for such violations, conflicts, defaults,
terminations, cancellations, redemptions, accelerations, losses and Liens as, individually and in
the aggregate, would not reasonably be expected to have a Parent Material Adverse Effect or prevent
or materially delay the consummation of the Share Exchange.
SECTION 5.5. Governmental Approvals. Except for (a) the admission of the Exchange
Shares to listing on the Official List becoming effective in accordance with the Listing Rules and
to trading on the London Stock Exchange becoming effective in accordance with the Admission and
Disclosure Standards, (b) filings required under, and compliance with other applicable requirements
of the HSR Act and (c) the filing with,
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and approval of, the UKLA of the Shareholder Circular and Prospectus and any other filings
with Governmental Authorities required under, and compliance with other applicable requirements of,
the Laws listed on Section 5.5 of the Parent Share Exchange Disclosure Schedule, no consents or
approvals of, or filings, declarations or registrations with, any Governmental Authority are
necessary for the execution and delivery of this Agreement by Parent and the consummation by Parent
of the Share Exchange, except for such other consents, approvals, filings, declarations or
registrations that, if not obtained, made or given, would not reasonably be expected, individually
and in the aggregate, to have a Parent Material Adverse Effect or prevent or materially delay the
consummation of the Share Exchange.
SECTION 5.6. Brokers. Except for the fees and expenses of brokers and financial
advisors, that will be paid by Parent, no broker, investment banker, financial advisor or other
Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or
commission, or the reimbursement of expenses, in connection with the Share Exchange Transactions
based upon arrangements made by or on behalf of Parent or any of its Subsidiaries in connection
with Parent’s entering in to this Agreement.
SECTION 5.7. Regulatory Reports; Undisclosed Liabilities.
(a) Parent has filed all matters required to be registered with the Registrar of Companies for
England and Wales and has published all material information, reports, shareholder circulars,
prospectuses or regulatory announcements required to be published by it under the Listing Rules,
the Prospectus Rules and/or the Disclosure and Transparency Rules and/or the rules of the London
Stock Exchange for the two years preceding the date hereof (the foregoing materials, including the
exhibits and amendments thereto, being collectively referred to herein as the “Regulatory
Reports”) on a timely basis or has received a valid extension of such time of filing and/or
publication and has filed and/or published any such Regulatory Reports prior to the expiration of
any such extension. As of their respective dates, the Regulatory Reports complied in all material
respects with the requirements of the relevant Listing Rules, Prospectus Rules and/or Disclosure
and Transparency Rules and all other applicable Laws.
(b) Each of the consolidated financial statements of Parent included in the Regulatory Reports
complied as to form, as of their respective dates of filing or publication, in all material
respects with all applicable accounting requirements and with the published rules and regulations
of the applicable Governmental Authority with respect thereto, have been prepared in accordance
with International Financial Reporting Standards as adopted by the European Union on the basis set
out therein (except, in the case of un-audited statements, as permitted by the rules and
regulations of the applicable Governmental Authority) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and, in the case of audited
consolidated financial statements, give a true and fair view of the state of affairs of Parent and
its consolidated Subsidiaries as at the dates stated and of the profit and loss of Parent and its
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consolidated Subsidiaries for the periods specified (subject, in the case of un-audited
statements, to normal, recurring year-end audit adjustments).
(c) Neither Parent nor any of its Subsidiaries has any liabilities or obligations of any
nature (whether absolute, accrued, contingent or otherwise), except liabilities or obligations (i)
reflected or reserved against on the consolidated balance sheet of Parent and its Subsidiaries as
of September 30, 2009 (the “Parent Balance Sheet Date”), including the notes thereto,
included in the Regulatory Reports, (ii) incurred after the Parent Balance Sheet Date in the
ordinary course of business, (iii) incurred pursuant to this Agreement or the Merger Agreement or
otherwise in connection with the Share Exchange Transactions or the Transactions, (iv) that
individually and in the aggregate would not reasonably be expected to have a material negative
impact on Parent and its Subsidiaries, taken as a whole, or (v) liabilities and obligations under
Contracts and employee benefit plans.
(d) Since January 1, 2007, Parent has complied in all material respects with FSMA, the Listing
Rules, the Prospectus Rules, the Disclosure and Transparency Rules, the Admission and Disclosure
Standards and the UK Companies Xxx 0000 or 2006 (as the case may be).
SECTION 5.8. Absence of Certain Changes. Since the Parent Balance Sheet Date:
(a) the business of Parent and its Subsidiaries has been carried on and conducted in all
material respects in the ordinary course of business consistent with past practice, except for the
execution and performance of this Agreement, the Merger Agreement and other agreements contemplated
by the Merger Agreement and the discussions and negotiations related thereto, and
(b) there has not been any change, development, occurrence, event or state of facts that,
individually or in the aggregate, has had or would reasonably be expected to have a Parent Material
Adverse Effect.
SECTION 5.9. Legal Proceedings. Except as set forth on Section 5.9 of the Parent
Share Exchange Disclosure Schedule, there is no legal, administrative or arbitral proceeding,
claim, suit, action, injunction, order, judgment, ruling, decree, regulatory enforcement action or
disciplinary proceeding, or, to the Knowledge of Parent, investigation (i) pending or, to the
Knowledge of Parent, threatened against Parent, any of its Subsidiaries or any of their respective
properties or assets before any Governmental Authority or (ii) pending or, to the Knowledge of
Parent, threatened before any Governmental Authority against any officer, director or employee of
Parent or any Subsidiary of Parent with respect to Parent’s and its Subsidiaries’ business
activities that, in the cases of clause (i) or (ii) would, individually or in the aggregate,
reasonably be expected to have a material negative impact on Parent and its Subsidiaries taken as a
whole.
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SECTION 5.10. Valid Issuance. The Exchange Shares will, at the time of issue, have
been duly authorized by all necessary action on behalf of Parent. When registered in the Parent’s
share register and issued against receipt of the consideration therefor, the Exchange Shares will
be duly authorized and duly and validly issued, fully paid, not subject to calls for further
payments or otherwise assessable, and free of encumbrances and preemptive rights, other than
statutory rights under the laws of England and Wales or as contemplated by this Agreement.
SECTION 5.11. Purchase for Own Account. Parent is acquiring the Subject Shares for
its own account and not with a view to, or for offer or sale in connection with, any distribution
or sale thereof in violation of the Securities Act, and Parent has no present or contemplated
agreement, understanding, arrangement, obligation or commitment providing for the disposition of
the Subject Shares.
SECTION 5.12. Ability to Protect its Own Interests and Bear Economic Risk. Parent,
by reason of its business and financial experience, has the capacity to protect its own interests
in connection with the transactions contemplated by this Agreement. Parent is able to bear the
economic risk of an investment in the Subject Shares and is able to sustain a loss of all of its
investment in the Subject Shares without economic hardship if such a loss should occur.
SECTION 5.13. Receipt of Information. Parent has received all the information it
considers necessary or appropriate for deciding whether to acquire the Subject Shares. Parent
further represents that it has had the opportunity to ask questions and receive answers from the
Stockholders regarding the terms and conditions of the Subject Shares and the business and
financial condition of the Company and to obtain additional information necessary to verify the
accuracy of any information furnished to Parent or to which Parent had access. The foregoing,
however, does not limit or modify the representations and warranties of the Stockholders in this
Agreement or the right of Parent to rely upon such representations and warranties. Parent has not
received, nor is Parent relying on, any representations from the Stockholders other than as
provided in this Agreement.
SECTION 5.14. Private Placement. Parent understands that (a) certain of the Subject
Shares have not been registered under the Securities Act or any other applicable securities laws by
reason of their issuance by the Company in a transaction exempt from the registration requirements
thereof and (b) that such unregistered Subject Shares may not be sold unless such disposition is
registered under the Securities Act and applicable state securities laws or is exempt from
registration thereunder.
SECTION 5.15. Legend. Parent hereby acknowledges and agrees that any certificate
representing an unregistered Subject Share will bear a legend to the following effect unless the
Company determines otherwise in compliance with applicable Law:
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“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER U.S. JURISDICTION. THE SHARES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NEITHER THIS SHARE NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.”
SECTION 5.16. Exclusivity of Representations and Warranties. Parent acknowledges and
agrees that no Stockholder makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those set forth in this Agreement and the Voting
Agreement.
SECTION 5.17. No Other Parent Representations or Warranties. Except for the
representations and warranties made by Parent in this Article 5, none of Parent or any of its
Subsidiaries, or any of their respective stockholders, directors, officers, members, managers,
employees, Affiliates, advisors, agents or representatives or any other Person has made or is
making any express or implied representation or warranty with respect to Parent or any of its
Subsidiaries or their respective businesses, operations, assets, liabilities or condition
(financial or otherwise) and any such other representations or warranties are hereby disclaimed.
In particular, without limiting the foregoing disclaimer, none of Parent or any of its
Subsidiaries, or any of their respective stockholders, directors, officers, members, managers,
employees, Affiliates, advisors, agents or representatives or any other Person makes or has made
any representation or warranty to any Stockholder or any of their Affiliates or Representatives or
shall have or be subjected to any liability with respect to (i) any financial projection, forecast,
estimate, budget or prospect information relating to Parent, any of its Subsidiaries or their
respective businesses or operations, or (ii) any oral or written information presented to any
Stockholder or any of their Affiliates or Representatives in the course of their due diligence
investigation of the Stockholders, the negotiation of this Agreement or in the course of the
transactions contemplated hereby.
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ARTICLE 6
ADDITIONAL AGREEMENTS
ADDITIONAL AGREEMENTS
SECTION 6.1. Exchange of Exchangeable Shares. Following receipt of approval by the
Cayman Islands Monetary Authority as set forth on Section 3.3 of the Stockholder Disclosure
Schedule and prior to the Share Exchange Closing, each Stockholder agrees to exchange all of such
Stockholder’s Exchangeable Shares, if any, for shares of Company Common Stock.
SECTION 6.2. Share Exchange Commitment. Each Stockholder, to the extent permitted by
Law, hereby waives any right of withdrawal of his acceptance to receive Exchange Shares pursuant to
Section 2.1 which arises pursuant to section 87Q(4) of FSMA in the event that Parent publishes any
supplementary prospectus pursuant to section 87G of FSMA. Each Stockholder will exchange, assign,
transfer and deliver all of such Stockholder’s Subject Shares to Parent in exchange for the
Exchange Shares to which it is entitled pursuant to Section 2.1 even if it has subsequently
exercised any right of withdrawal pursuant to section 87Q(4) of FSMA in respect of such Exchange
Shares.
SECTION 6.3. Transfer and Other Restrictions.
(a) Until this Agreement is terminated in accordance with its terms, except pursuant to the
Share Exchange contemplated hereby or as otherwise permitted by Section 6.1 or 6.3(b), each
Stockholder agrees (severally with respect to itself and not jointly) not to sell, transfer,
pledge, encumber, assign or otherwise dispose of (collectively, “Transfer”), or enter into
any contract, option or other arrangement or understanding with respect to the Transfer of, such
Stockholder’s Subject Shares or any interest contained therein.
(b) At any time prior to the Share Exchange Closing Date, the Stockholders may by written
notice to Parent, Transfer such Stockholder’s Subject Shares to an Affiliate or other Person (i)
for purpose of facilitating the Share Exchange and the other transactions contemplated by this
Agreement or (ii) in accordance with Section 8.2(d); provided, however, that any Transfer
contemplated by Section 6.3(b)(i) shall not impede or delay the consummation of the Share Exchange
or the other transactions contemplated by this Agreement or otherwise impede any rights of Parent
under this Agreement. Any transferee pursuant to such a Transfer shall agree to be bound by all of
the provisions and obligations of this Agreement applicable to the transferring Stockholder,
including, without limitation, the Share Exchange, shall become a party to this Agreement and shall
become a “Stockholder” for all purposes under this Agreement. No such Transfer shall limit or
affect such transferring Stockholder’s obligations hereunder.
SECTION 6.4. No Solicitation.
(a) Subject in all respects to Section 6.8, each Stockholder shall, and shall cause its
Affiliates (excluding for this purpose the Company) and its and its
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Affiliates’ respective Representatives to, immediately cease and cause to be terminated any
discussions or negotiations with any Person conducted heretofore with respect to a Takeover
Proposal, and use best efforts to obtain the return from all such Persons or cause the destruction
of all copies of confidential information previously provided to such parties by such Stockholder
or its Representatives. Subject in all respects to Section 6.8, from the date hereof until any
termination of this Agreement in accordance with its terms, each Stockholder shall not, and shall
cause its Representatives not to, and shall not authorize or permit its Representatives to,
directly or indirectly, (i) solicit (or facilitate or encourage, including by way of furnishing
non-public information) the making of, or any inquiries regarding, or the making of any proposal or
offer that is reasonably likely to lead to, a Takeover Proposal or (ii) engage in, continue or
otherwise participate in any discussions or negotiations with any third party regarding a Takeover
Proposal.
(b) Subject in all respects to Section 6.8, in addition, from the date hereof until any
termination of this Agreement in accordance with its terms, each Stockholder shall promptly advise
Parent in writing, and in no event later than 24 hours after receipt, if any proposal, offer or
inquiry is received by, any information is requested from, or any discussions or negotiations are
sought to be initiated or continued with, such Stockholder, its Affiliates (excluding for this
purpose the Company) or their respective Representatives in respect of a Takeover Proposal, and
shall, in such notice to Parent, indicate the identity of the Person or group of Persons making
such proposal, offer, inquiry or request and the terms and conditions of such proposal or offer and
the nature of such inquiry or request (and shall include with such notice copies of any draft
agreements, financing commitment letters and other written materials and correspondence received
from or on behalf of such Person or group of Persons relating to such proposal, offer, inquiry or
request), and thereafter shall promptly keep Parent informed of all material developments affecting
the status and terms and conditions of such proposal, offer, inquiry or request (and such
Stockholder shall provide Parent with copies of any additional drafts of agreements, financing
commitment letters and other written materials and correspondence received that relate thereto) and
the status of discussions or negotiations.
(c) Notwithstanding anything to the contrary in this Section 6.4, a Stockholder may
participate in discussions or negotiations with a third party regarding a Takeover Proposal if (i)
the Board of Directors is permitted to participate in discussions or negotiations with such third
party regarding such Takeover Proposal pursuant to Section 5.3 of the Merger Agreement and (ii) the
Board of Directors requests the participation of such Stockholder in discussions or negotiations
with respect to such Takeover Proposal without any, direct or indirect, solicitation, initiation,
causation, facilitation or encouragement by such Stockholder.
SECTION 6.5. Further Assurances. Subject in the case of the Stockholders in all
respects to Section 6.8 and subject in the case of each party to the other terms and conditions
provided herein, each party hereto agrees to use, in both cases of clause (a) and (b) below, its
reasonable best efforts (a) to take, or cause to be taken, all action, and (b) to do, or cause to
be done, and to assist and cooperate with the other
17
parties in doing, all things necessary, proper or advisable to consummate and make effective
in the most expeditious manner practicable, the Share Exchange, including (i) the obtaining of all
permits, consents, approvals, authorizations and actions or nonactions required for or in
connection with the consummation by the parties hereto of the Share Exchange, (ii) the taking of
all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, a Governmental Authority, (iii) the obtaining of all necessary consents from third
parties, and (iv) the execution and delivery of any additional instruments necessary to consummate
the Share Exchange to fully carry out the purposes of this Agreement.
SECTION 6.6. Exchange Shares. Following the admission of the Exchange Shares to the
Official List becoming effective in accordance with the Listing Rules and to trading on the London
Stock Exchange’s main market for listed Securities becoming effective in accordance with the
Admission and Disclosure Standards, Parent shall issue a certificate for the number of Exchange
Shares to which each Stockholder is entitled as determined in accordance with Section 2.1. Parent
shall retain all Exchange Shares of each Stockholder (other than the Service Partnerships) in
accordance with the terms of such Stockholder’s Lock-Up Agreement. Subject to the immediately
following sentence, each Service Partnership acknowledges and agrees that each certificate
representing Exchange Shares allotted and issued to it will bear a legend to the following effect
unless Parent determines otherwise in compliance with applicable Law:
“THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER U.S. JURISDICTION.
THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NEITHER THIS SHARE NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF, OTHER THAN ON
THE LONDON STOCK EXCHANGE, IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.”
In connection with a distribution of Exchange Shares required to be made pursuant to the
Organizational Documents of an Service Partnership to a limited partner of such Service
Partnership, Parent shall deliver to such Service Partnership a share certificate evidencing title
to that number of Exchange Shares required to be distributed to such limited partner free from the
foregoing legend or any similar wording; provided, that such limited partner shall have agreed in
writing for the benefit of Parent only to resell the Exchange Shares represented by such share
certificate in ordinary transactions on the London Stock Exchange.
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SECTION 6.7. Public Statements. Subject in all respects to Section 6.8, each
Stockholder agrees (severally with respect to itself and not jointly) that no public release or
announcement concerning the Share Exchange Transactions or the Transactions shall be issued by such
Stockholder without the prior written consent of Parent (which consent shall not be unreasonably
withheld or delayed), except as such release or announcement may be required by Law, including,
without limitation, the HSR Act and Sections 13 and 16 of the Exchange Act, or the rules or
regulations of any applicable Governmental Authority to which such Stockholder is subject or
submits, wherever situated, in which case the Stockholder required to make the release or
announcement shall not issue or cause the publication or making of such press release or other
public announcement without prior consultation with Parent.
SECTION 6.8. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary: (a) each Stockholder makes no agreement or understanding herein in any capacity other
than in such Stockholder’s capacity as a record holder and beneficial owner of its Subject Shares
(or in the case of a Stockholder who is the trustee of a trust, makes no agreement or understanding
herein in any capacity other than the trustee of a trust that is the record holder of and whose
beneficiaries are the beneficial owners of its Subject Shares) and (b) nothing herein will be
construed to limit or affect any action or inaction by such Stockholder (or a designee of such
Stockholder) in such person’s capacity as an officer or director of the Company in connection with
this Agreement, the Merger Agreement or otherwise, and such actions shall not be deemed to be a
breach of this Agreement.
SECTION 6.9. Amendment of Agreements.
(a) Prior to the Share Exchange Closing, the Stockholders agree to amend the GLG Shareholders
Agreement, dated as of June 22, 2007, among Freedom Acquisition Holdings, Inc. and the Persons set
forth therein to cause such agreement to terminate upon the Effective Time.
(b) Prior to the Share Exchange Closing, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxxx,
Xxxxxx X. Xxxxxxxx, G&S Trustees Limited and Xxxxxxx X. Xxxxxx shall terminate the Agreement among
Principals and Trustees, dated as of June 22, 2007, among Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx
Xxxxx, Xxxxxx X. Xxxxxxxx, as Trustee, G&S Trustees Limited, as Trustee, and Xxxxxxx X. Xxxxxx, as
Trustee, and all rights and obligations thereunder shall be of no further force and effect.
SECTION 6.10. Resignation from the Company’s Board of Directors. Each Stockholder
acknowledges the provisions contained in Section 1.6 of the Merger Agreement, and each Stockholder
who is a director of the Company agrees to resign as a director of the Company, as provided for in
Section 1.6 of the Merger Agreement. Each Stockholder further agrees and acknowledges that such
resignation shall not constitute a breach of the terms of any Stockholder’s employment contract and
to the extent that resignation shall constitute a breach of such contract each Stockholder agrees
to waive such breach.
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SECTION 6.11. No Dealing.
(a) Other than pursuant to this Agreement, each Stockholder agrees not to engage in any
Dealing in relation to the Parent Shares until after the Share Exchange Closing Date.
(b) Except as required by Section 6.1, from the date hereof, each Stockholder agrees not to
acquire any shares of capital stock of the Company or any Exchangeable Stock (including through the
exercise of any warrants or any other convertible or exchangeable securities or similar
instruments); provided, that the Stockholders may acquire Conversion Shares upon conversion of
Convertible Notes.
SECTION 6.12. Parent Shareholders Meeting; Preparation of the Shareholder Circular and
Prospectus.
(a) If at any time prior to the Parent Shareholders Meeting any event shall occur, or fact or
information shall be discovered by a Stockholder, that should be set forth in an amendment or
supplement to the Shareholder Circular, that Stockholder shall promptly notify the other parties
hereto and Parent shall prepare and file with the UKLA such amendment or supplement as promptly as
practicable and, to the extent required by Law, cause such amendment or supplement to be
disseminated to the shareholders of Parent.
(b) If at any time prior to the commencement of the trading of the Parent Ordinary Shares on
the London Stock Exchange to be issued in connection with the Share Exchange, any Stockholder
becomes aware of a significant new factor, material mistake or inaccuracy relating to the
information included in the Prospectus relating to the Company or the Stockholders, that should be
set forth in a supplement to the Prospectus, that Stockholder shall promptly notify the other
parties hereto and Parent shall prepare and file with the UKLA such supplement as promptly as
practicable and shall cause such supplement to be published once it has been approved by the UKLA.
(c) Each Stockholder shall cooperate with Parent in the preparation of the Shareholder
Circular and Prospectus or any amendment or supplement thereto. Without limiting the generality of
the foregoing, each Stockholder will furnish to Parent all information relating to it required by
the Listing Rules and FSMA to be set forth in the Shareholder Circular and the Prospectus.
SECTION 6.13. Employment Agreements. Each of Parent, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx
and Xxxxxxxx Xxxxx agree to negotiate in good faith and use his or its reasonable best efforts to
enter into, prior to the Share Exchange Closing, definitive employment agreements substantially in
the form attached as Exhibit B.
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SECTION 6.14. Continued Reinvestment.
(a) Immediately prior to the Effective Time, each Reinvestment Holder shall designate as
“restricted” a portion of the funds that are then-invested by such Reinvestment Holder (and/or such
Reinvestment Holder’s Related Trust) in one or more of the Funds that have a net asset value at
such time equal to the amount set forth opposite such Reinvestment Holder’s name on Schedule II
(such Reinvestment Holder’s “Effective Time Reinvestment Amount”). To the extent the net
asset value of the amounts invested by such Reinvestment Holder (and/or such Reinvestment Holder’s
Related Trust) in one or more of the Funds at the Effective Time are less than such Reinvestment
Holder’s Effective Time Reinvestment Amount, then at the Effective Time such Reinvestment Holder
shall invest additional funds in one or more of the Funds and designate them as “restricted” so
that the aggregate amount of funds invested by it (and such Reinvestment Holder’s Related Trust) at
the Effective Time are equal to such Reinvestment Holder’s Effective Time Reinvestment Amount.
Each Reinvestment Holder’s Restricted Reinvested Assets shall remain invested in one or more of in
the Funds until the third anniversary of the Closing on the
same terms and conditions that are generally applicable at such time to other investors in the
applicable Fund, including with respect to the payment of fees and taking into account any rebates
customarily paid in respect of management, incentive or distribution fees. At all times Restricted
Reinvested Assets and any Unrestricted Reinvested Assets shall be held in segregated accounts. For
the avoidance of doubt, nothing in this Section 6.14 shall (i) prevent any Reinvestment Holder from
moving Restricted Reinvested Assets between and among the Funds, (ii) prevent any Reinvestment
Holder from redeeming or withdrawing that portion (if any) of the Restricted Reinvested Assets
equal to the amount by which the net asset value of such Stockholder’s Restricted Reinvested Assets
at the time of such redemption or withdrawal exceeds the Maximum Restricted Assets Amount set forth
opposite such Reinvestment Holder’s name on Schedule II or (iii) require any Reinvestment Holder to
make any additional investment in any of the Funds after the Effective Time. For the further
avoidance of doubt, nothing in this Section 6.14 shall restrict or prevent any Reinvestment Holder
from withdrawing or redeeming Unrestricted Reinvestment Assets (as such Unrestricted Reinvestment
Assets may have increased or decreased over time as a result of investment results) at any time,
including, during such time as such Reinvestment Holder would be precluded by this Section 6.14
from redeeming or withdrawing Restricted Reinvested Assets.
(b) Each of the parties agrees to use commercially reasonable efforts to execute and deliver,
or cause to be executed and delivered, all documents and to take, or cause to be taken, all actions
that may be reasonably necessary or appropriate to effectuate the provisions of this Section 6.14.
21
ARTICLE 7
CONDITIONS
CONDITIONS
SECTION 7.1. Conditions to Each Party’s Obligation to Effect the Share Exchange.
(a) The respective obligations of each party hereto to effect the Share Exchange shall be
subject to the satisfaction, by the party responsible for fulfilling the obligation, or, to the
extent permitted under applicable Law, waiver, by the party entitled to the benefit thereof, on or
prior to the Share Exchange Closing Date of each of the conditions set forth in Article VI of the
Merger Agreement; provided, however, that for purposes of this Section 7.1, the condition in
Section 6.2(c) of the Merger Agreement relating to the transactions contemplated by this Agreement
shall be disregarded; provided, further, for purposes of this Section 7.1(a) that no waiver shall
be given effect hereunder unless the corresponding waiver shall have been given under the Merger
Agreement.
(b) Antitrust and Other Regulatory Approvals. The waiting period (and any extension
thereof) applicable to the Share Exchange under the HSR Act shall have expired or been terminated.
In addition, (i) any waiting period (and any extension thereof) applicable to the Share Exchange
under other Antitrust Laws listed on Exhibit C shall have expired or been terminated, and all
consents, approvals and authorizations of any Governmental Authority required of Parent, the
Company, any of their respective Subsidiaries or any Stockholder under such Antitrust Laws to
consummate the Share Exchange shall have been obtained, assuming consummation of the Share
Exchange; and (ii) the Governmental Authorities listed on Exhibit D shall have Approved the Share
Exchange Transactions and the Transactions and (iii) each other Governmental Authority shall have
Approved the Transactions where, in the absence of such approval, the consummation of the Merger
would be unlawful in any jurisdiction.
(c) No Restraints. No Law, injunction, order, judgment, ruling or decree enacted,
promulgated, issued, entered, amended or enforced by any Governmental Authority of competent
jurisdiction located in the United States, or in a jurisdiction outside of the United States in
which the Company, Parent or any of their respective Subsidiaries or any Stockholder engages in
material business activities, shall be in effect enjoining, restraining, preventing or prohibiting
consummation of the Share Exchange or making the consummation of the Share Exchange illegal.
(d) Admission of Exchange Shares. Admission of the Exchange Shares to listing on the
Official List shall have become effective in accordance with the Listing Rules and admission of the
Exchange Shares to trading on the London Stock Exchange shall have become effective in accordance
with the Admission and Disclosure Standards.
SECTION 7.2. Conditions to Obligations of Parent. The obligations of Parent to
effect the Share Exchange are further subject to the satisfaction, or to the extent
22
permitted under applicable Law, the waiver on or prior to the Share Exchange Closing Date of
each of the following conditions:
(a) Representations and Warranties. (i) The representations and warranties of each
Stockholder contained in Sections 3.3 and 3.11, disregarding all qualifications and exceptions
contained therein relating to materiality and Stockholder Material Adverse Effect, shall have been
true and correct as of the date of this Agreement and shall be true and correct on and as of the
Share Exchange Closing Date as if made on and as of the Share Exchange Closing Date, except (in the
case of this clause (i)) for such failures to be true and correct that, individually and in the
aggregate, would not reasonably be expected to have a Stockholder Material Adverse Effect and (ii)
all other representations and warranties of each Stockholder contained in Article 3 of this
Agreement shall have been true and correct as of the date of this Agreement and shall be true and
correct on and as of the Share Exchange Closing Date as if made on and as of the Share Exchange
Closing Date (or, to the extent given as of a specific date, as of such date), except for de
minimis inaccuracies.
(b) Performance of Obligations of the Stockholders. Each Stockholder shall have
performed in all material respects all obligations required to be performed by it under this
Agreement at or prior to the Share Exchange Closing Date.
(c) Certificate. Parent shall have received certificates from each Stockholder
certifying that the conditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied.
(d) Required Consents. The Stockholders shall have obtained the consents set forth on
Section 3.2 of the Stockholder Disclosure Schedule.
(e) Lock-Up Agreements. Each Stockholder, other than the Service Partnerships, shall
have executed and delivered a Lock-Up Agreement.
SECTION 7.3. Conditions to Obligation of the Stockholders. The obligation of each
Stockholder to effect the Share Exchange is further subject to the satisfaction, or to the extent
permitted under applicable Law, the waiver on or prior to the Share Exchange Closing Date of each
of the following conditions:
(a) Representations and Warranties. (i) The representation and warranty of Parent
contained in Section 5.8(b) shall have been true and correct as of the date of this Agreement and
shall be true and correct on and as of the Share Exchange Closing Date as if made on and as of the
Share Exchange Closing Date; (ii) the representations and warranties of Parent contained in
Sections 5.1(a), 5.2, 5.3, 5.4(a), and 5.6 shall have been true and correct as of the date of this
Agreement and shall be true and correct on and as of the Share Exchange Closing Date as if made on
and as of the Share Exchange Closing Date (or, to the extent given as of a specific date, as of
such date), except for de minimis inaccuracies (and in the case of Section 5.2, disregarding any
inaccuracies arising from the issue of the Exchange Shares at the Share Exchange
23
Closing); and (iii) all other representations and warranties of Parent contained in this
Agreement, disregarding all qualifications and exceptions contained therein relating to materiality
or Parent Material Adverse Effect, shall have been true and correct as of the date of this
Agreement and shall be true and correct on and as of the Share Exchange Closing Date as if made on
and as of the Share Exchange Closing Date (or, to the extent given as of a specific date, as of
such date), except (in the case of this clause (iii)) for such failures to be true and correct
that, individually and in the aggregate, would not reasonably be expected to have a Parent Material
Adverse Effect.
(b) Performance of Obligations of Parent. Parent shall have performed in all material
respects all obligations required to be performed by it under this Agreement at or prior to the
Share Exchange Closing Date.
(c) Certificates. Each Stockholder shall have received certificates executed on
behalf of Parent by an authorized officer of Parent, certifying that the conditions set forth in
Sections 7.3(a) and 7.3(b) have been satisfied.
(d) Audited 2010 Financial Statements. Audited financial statements of the Parent for
the year ended March 31, 2010 (the “Audited 2010 Financial Statements”) shall have been
released and subject to an unqualified opinion of the independent public accountants of Parent, and
such Audited 2010 Financial Statements (including the notes thereto) shall not have any
discrepancies compared to the draft financial statements of Parent for the fiscal year ended March
31, 2010 previously delivered to the Stockholders, except for such discrepancies, individually or
in the aggregate, which would not be reasonably expected to have a Parent Material Adverse Effect.
ARTICLE 8
SURVIVAL; TRUSTEE LIABILITY
SURVIVAL; TRUSTEE LIABILITY
SECTION 8.1. Survival. The representations, warranties, covenants and agreements in
this Agreement (or pursuant to any certificate delivered pursuant to Section 7.2 or Section 7.3)
shall terminate at the Share Exchange Closing; provided, however, that (a) the representations and
warranties set forth in Sections 3.1 (Authority), 3.3 (Ownership of Shares), 5.3 (Authority) and
5.10 (Valid Issuance) shall survive the Closing indefinitely and (b) the covenants and agreements
set forth in Section 6.14 and any other covenant or agreement set forth in this Agreement which
contemplates performance after the Share Exchange Closing, shall survive the Share Exchange
Closing.
SECTION 8.2. Trustee Liability. The following provisions shall apply to each of the
parties to this Agreement that are acting as trustees of a trust (a “Trustee Party”):
(a) No Trustee Party shall have any personal liability or obligations of any kind under this
Agreement or any other document contemplated by the Merger
24
Agreement to which such Trustee Party is a party. Any and all personal liability of any
Trustee Party for breaches by any Stockholder of any obligations, covenants or agreements, either
at common law or at equity, under any law or otherwise, is hereby expressly waived by Parent as a
condition of and consideration for the execution of this Agreement.
(b) By executing and delivering this Agreement or any other document contemplated by the
Merger Agreement, such Trustee Party is acting solely on behalf of, and each of this Agreement and
any other document contemplated by the Merger Agreement to which such Trustee Party is a party, is
solely an obligation of, and solely a claim against, the trust estate and assets of the trust
administered by such Trustee Party.
(c) Any claim or right to proceed against any Trustee Party individually, or the individual
property or assets of any Trustee Party, is hereby irrevocably waived and released. No recourse
under this Agreement or any other document contemplated by the Merger Agreement to which such
Trustee Party is a party shall be had against any Trustee Party or any of its assets, except to the
extent of the trust estate and assets of the trust administered by such Trustee Party from time to
time, by the enforcement of any assessment or by any legal or equitable proceedings seeking to
assert such recourse against the Trustee Party by virtue of any law or otherwise.
(d) Nothing in this Agreement or any other document contemplated by the Merger Agreement to
which such Trustee Party is a party shall prevent any Trustee Party from making any distribution
from, investment, reinvestment, purchase, sale or other disposition of, other transactions of any
kind involving, the trust estate and assets of the trust administered by such Trustee Party other
than the Subject Shares; provided, that Subject Shares may be distributed or otherwise transferred
(a “Permitted Transfer”) to a Person (each, a “Permitted Trust Transferee”) who or
which is (i) a trust beneficiary or a spouse, former spouse, grandparent, parent, brother, sister
or lineal descendent of a trust beneficiary or a Permitted Trust Transferee, (ii), upon the death
of a trust beneficiary or a Permitted Trust Transferee, executors, testamentary trustees, devisees
or legatees of or heirs to the estate of such deceased person, (iii) any trust principally for the
benefit of one or more of the trust beneficiaries and/or any Permitted Trust Transferee, (iv) upon
disability of any trust beneficiary or any Permitted Trust Transferee, any guardian or conservator
for such disabled person or (v) any corporation, partnership or other entity if all the beneficial
ownership of such entity is held by the Trustee Party, the trust beneficiary and/or any Permitted
Trust Transferee; provided, further, that prior to the effectiveness of any Permitted Transfer, the
applicable Permitted Trust Transferee assumes and agrees to perform, becomes a party to and becomes
a “Stockholder” for all purposes under, this Agreement.
(e) Parent hereby irrevocably agrees that, in furtherance of the provisions of this Section,
(i) it shall not institute against, or join any other Person in instituting against, any Trustee
Party individually, or the individual property or assets of any Trustee Party, any bankruptcy,
reorganization, insolvency or liquidation proceeding, or other proceeding under any international,
national, federal or state bankruptcy or
25
similar law, in connection with any claim relating to the Transaction; (ii) in the event of
any reorganization under the Bankruptcy Reform Act of 1978, as amended, of any Trustee Party, it
will make the election under Section 111(b)(2) of such Act; and (iii) if for any reason, whether or
not related to the Bankruptcy Reform Act of 1978, as amended, it shall recover from any Trustee
Party individual property or assets of such Trustee Party, it promptly shall return such asset or
amount recovered to such Trustee Party.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. Termination. This Agreement shall terminate and cease to have any force
or effect on the earlier of (a) the termination of the Merger Agreement in accordance with its
terms and (b) the written agreement of the parties hereto to terminate this Agreement. In
addition, the holders of a majority of the Subject Shares held by the Principal Stockholders may
elect to terminate this Agreement upon the effectiveness of any amendment or other modification to
the Merger Agreement, or of any waiver by the Company of any material covenant or condition
thereof, that is effected without the prior written consent of the holders of a majority of the
Subject Shares held by the Principal Stockholders; provided, that this right shall not apply to any
amendment, modification or waiver that is not adverse to the Company or any of the Stockholders.
SECTION 9.2. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement executed by each of the
parties hereto; provided, however, that with respect to the obligations of any single Stockholder
under this Agreement, this Agreement may be amended with the approval of such Stockholder and
Parent subject to the prior written consent of the other Stockholders, which consent shall not be
unreasonably withheld or delayed.
SECTION 9.3. Waiver. No failure or delay by a Stockholder or Parent in exercising
any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right
hereunder. Any agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such party.
ARTICLE 10
GENERAL PROVISIONS
GENERAL PROVISIONS
SECTION 10.1. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by
any of the parties without the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective
26
successors and permitted assigns. Any purported assignment not permitted under this Section
10.1 shall be null and void.
SECTION 10.2. Entire Agreement. This Agreement (including all exhibits hereto), the
Stockholder Disclosure Schedule, the Parent Share Exchange Disclosure Schedule, the Lock-Up
Agreements, the Merger Agreement, the Company Disclosure Schedule, the Parent Disclosure Schedule,
the Voting Agreement and the Confidentiality Agreement constitute the entire agreement, and
supersede all other prior agreements and understandings, both written and oral, among the parties,
or any of them, with respect to the subject matter hereof and thereof.
SECTION 10.3. No Third-Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person other than the parties hereto (and their
respective successors and permitted assigns) any right or remedy of any nature whatsoever under or
by reason of this Agreement, other than as provided in Article 8.
SECTION 10.4. Governing Law. All claims or causes of action (whether at Law, in
contract, in tort or otherwise) that may be based upon, arise out of or relate to this Agreement
(including, without limitation, the negotiation, termination, performance or non-performance of
such other Sections) or the execution of this Agreement, shall be governed by and construed in
accordance with the Laws of the State of Delaware (without regard to any choice or conflicts of Law
principles (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the State of Delaware).
SECTION 10.5. Jurisdiction.
(a) All actions and proceedings arising out of or relating to this Agreement shall be heard
and determined in the Chancery Court of the State of Delaware and any state appellate court
therefrom within the State of Delaware (or, if the Chancery Court of the State of Delaware declines
to accept jurisdiction over a particular matter, any state or federal court within the State of
Delaware), and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such
courts (the “Agreed Courts”) in any such action or proceeding and irrevocably waive the
defense of an inconvenient forum to the maintenance of any such action or proceeding.
(b) Without limiting other means of service of process permissible under applicable Law, each
of the parties hereto agrees that service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth in Section 10.9 shall be effective service of
process for any suit or proceeding in connection with this Agreement. The consents to jurisdiction
set forth in this paragraph shall not constitute general consents to service of process in the
State of Delaware and shall have no effect for any purpose except as provided in this paragraph and
shall not be deemed to confer rights on any Person other than the parties hereto. The parties
hereto agree that a final judgment in any such action or proceeding shall be conclusive and may
27
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
Law.
SECTION 10.6. Specific Performance. The parties agree that irreparable damage would
occur and that the parties would not have any adequate remedy at law in the event that any of the
provisions of this Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any Agreed Court, without proof of actual damages (and each party
hereby waives any requirement for the securing or posting of any bond or other security in
connection therewith); specific performance being in addition to any other remedy to which the
parties are entitled at law or in equity.
SECTION 10.7. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.8. Severability. If any term or other provision of this Agreement is
determined by a court of competent jurisdiction to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other terms, provisions and conditions of this
Agreement shall nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by Law in an acceptable manner to
the end that the Share Exchange Transactions or the Transactions are fulfilled to the extent
possible.
SECTION 10.9. Notices. All notices, requests and other communications to any party
hereunder shall be in writing and shall be deemed given if delivered personally, telecopy faxed
(which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at
the following addresses:
28
if to Parent:
Man Group plc
Xxxxx Xxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Fax: x00 000000 0000
Xxxxx Xxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Fax: x00 000000 0000
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000 0000
Attention: Xxxx XxXxxxxx
Xxxxxxxx X. Do
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000 0000
Attention: Xxxx XxXxxxxx
Xxxxxxxx X. Do
if to a Stockholder, to the appropriate address set forth on Schedule I hereto,
with a copy (which shall not constitute notice) to:
Xxxxx & Overy LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx Xxxxx
or such other address or telecopy fax number as such party may hereafter specify by like
notice to the other parties hereto. All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof if received prior to 5 P.M. in the
place of receipt and such day is a business day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.
SECTION 10.10. Fees and Expenses. All fees and expenses incurred in connection with
this Agreement and the Share Exchange Transactions or the Transactions shall be paid by the party
incurring such fees or expenses, whether or not the Share Exchange is consummated.
SECTION 10.11. Interpretation.
29
(a) When a reference is made in this Agreement to an Article, a Section, Schedule or Exhibit,
such reference shall be to an Article of, a Section of, or a Schedule or Exhibit to, this Agreement
unless otherwise indicated. The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the word “including” is used in this Agreement, it shall be deemed to be
followed by the words “without limitation”. The words “hereof”, “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The word “extent” in the phrase “to the extent” shall
mean the degree to which a subject or other thing extends, and such phrase shall not mean simply
“if.” All terms defined in this Agreement shall have the defined meanings when used in any
Schedule or other document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any
agreement, instrument or statute defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein. References to a Person
are also to its permitted assigns and successors.
(b) The Stockholder Disclosure Schedule and the Parent Share Exchange Disclosure Schedule
shall identify items of disclosure by reference to a particular section or subsection of this
Agreement; provided, that any matter disclosed with respect to one section or subsection of this
Agreement shall be deemed disclosed for purposes of all other sections or subsections of this
Agreement to the extent its relevance to such other sections or subsections is reasonably apparent.
(c) The parties hereto have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision
of this Agreement.
SECTION 10.12. Counterparts. This Agreement may be executed in counterparts (each of
which shall be deemed to be an original but all of which taken together shall constitute one and
the same agreement) and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
30
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed,
individually or by its respective officer thereunto duly authorized, as of the date first written
above.
MAN GROUP PLC |
||||
By: | /s/ Xxxxxxx Xxxx | |||
Name: | Xxxxxxx Xxxx | |||
Title: | General Counsel | |||
Stockholders: |
||||
/s/ Xxxx Gottesman Noam
Xxxxxxxxx |
||||
/s/ Pierre Lagrange Pierre Lagrange |
||||
/s/ Emmanuel Roman Emmanuel Roman |
||||
/s/ Xxxxxx X. Schreyer Leslie X. Xxxxxxxx, in his capacity as trustee of the Xxxxxxxxx GLG Trust |
||||
Xxxxxxx X. Xxxxxx, in his capacity as trustee of the Roman GLG Trust |
||||
XXXXXXX HOLDING SERVICES INC. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director | |||
G&S TRUSTEES LIMITED, in its capacity as trustee of the LAGRANGE GLG TRUST |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director |
31
POINT PLEASANT VENTURES LTD. |
||||
By: | /s/ Xxxxx Xxxxxxx | |||
Name: | Xxxxx Xxxxxxx | |||
Title: | Director | |||
LAVENDER HEIGHTS CAPITAL LP |
||||
By: | Mount Garnet Limited, its general partner | |||
By: | /s/ Xxxxxx X. Xxxxxxxx |
|||
Name: Xxxxxx X. Xxxxxxxx | ||||
Title: | Director | |||
SAGE SUMMIT LP |
||||
By: | Sage Summit Ltd., its general partner | |||
By: | /s/ Xxxxxx X. Xxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxx | |||
Title: | Director | |||
TOMS INTERNATIONAL LTD. |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President and Assistant Secretary |
32
SCHEDULE I
Stockholders Participating in Share Exchange Agreement
Common | ||||||||||||
Shares | Preferred | |||||||||||
(other than | Open | Shares and | ||||||||||
Open Market | Market | Exchangeable | ||||||||||
Name | Shares) | Shares | Shares | |||||||||
Xxxx Xxxxxxxxx |
1,309,664 | 4,623 | ||||||||||
Xxxxxx Xxxxxxxx |
4,623 | |||||||||||
Xxxxxxxx Xxxxx |
1,466 | 348,696 | ||||||||||
Xxxxxxxxx GLG Trust |
58,900,370 | |||||||||||
Xxxxxxx Holding Services Inc. |
17,988,050 | |||||||||||
Roman GLG Trust1 |
||||||||||||
Point Pleasant Ventures Ltd. |
58,900,370 | |||||||||||
Lagrange GLG Trust2 |
||||||||||||
Lavender Heights Capital LP |
5,640,570 | |||||||||||
Sage Summit LP |
8,460,854 | |||||||||||
Total |
90,995,933 | 1,658,360 | 58,904,993 |
1 | Stockholder owns its interests through Xxxxxxx Holding Services Inc. | |
2 | Stockholder owns its interests through Point Pleasant Ventures Ltd. |